Victorian Civil and Administrative Tribunal|2009-02-16

The application by the respondent to strike out the proceeding is refused.
Leave is given to the respondent to amend the permit application regarding the date or dates of the proposed music festival by no later than 13 March 2009.
This matter is listed for hearing for 1 day on 29 April 2009.
No order as to costs.

Mr Peter O'Farrell of counsel, instructed by Rigby Cooke.

(given orally at the hearing and subsequently revised)

This case involves the application of fundamental principles of natural justice. One of the rules of natural justice is that a person whose interests will be affected by a decision receives a fair hearing. This entails that the person is given notice of the decision is to be made and a reasonable opportunity to be heard.
Inversion Productions Pty Ltd applied for a planning permit on 29 April 2008 to conduct a music festival at the Phillip Island Motor Racing Circuit on 21 March 2009. It took the council six months to decide to grant a permit and a notice of decision was issued on 15 October 2008.
An objector's application for review was lodged within time on 7 November 2008 by Jan Fleming and Anne Davie (application P3237/2008). On 19 November 2008 the permit applicant applied for practice day hearing to request that the matter be listed for an urgent hearing. Notice was given of a practice day hearing on 28 November 2008 by way of express post on 26 November 2008. There was no appearance by Ms Fleming or Ms Davie at this practice day hearing. For the reasons set out in the order dated 28 November 2008, Member Rickards struck out the application for review in P3237/2008 and, pursuant to section 51(5) of the Victorian Civil and Administrative Tribunal Act 1998, confirmed the decision of the Responsible Authority to grant the permit.
Several days later, when the permit applicant enquired to council about issue of the permit, it learned that there were other objectors' applications for review that had been lodged.
In fact, four additional and separate applications for review were lodged by Margaret Hancock, Hilton Chadwick, Pauline Taylor and Susanne Chadwick, all within time. Unfortunately, they were not included in application P3237/2008, but a separate file was opened, application P3491/2008. Consequently, when Member Rickards considered application P3237/2008 at the practice day hearing on 28 November 2008, she was unaware (as were other parties) of this second proceeding.
The urgency associated with the speedy hearing request was due to the permit applicant's need to be certain that a permit would be issued for the event in March 2009 so that artists could be engaged and contracts signed. The deadline for this was the beginning of December 2008.
The Tribunal served copies of the additional applications for review on the council and permit applicant on 3 December 2008. On the same day, it gave notice of an urgent practice day hearing on 5 December 2008, the purpose of which was stated to be:
- To consider the permit applicant's request for a final hearing;
- Applicant 1 (Margaret Hancock) wrong fee;
- Future conduct of the proceeding.
Tribunal officers personally contacted all the applicants for review about the hearing but none of them were able to attend due to the short notice, the distance they lived from Melbourne and other prior, personal commitments.
At the hearing on 5 December 2008, the Tribunal was prepared to facilitate an urgent hearing of the proceeding before Christmas. However, this was too late for the permit applicant and Mr O'Farrell applied on its behalf to have these applications for review struck out and for the Tribunal to confirm the council's decision to grant a permit pursuant to section 51(5) of the Victorian Civil and Administrative Tribunal Act 1998. Section 51(5) provides as follows:

[5] If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.

Mr O'Farrell relied upon the decision of Justice Morris in Buttigieg v Melton SC No. 2[1] to say that the Tribunal has no discretion under section 51(5), but is bound to confirm the decision if an applicant does not appear at the hearing of a proceeding. Whilst the words of section 51(5) refer to "the hearing of a proceeding for review of a decision", Justice Morris ruled in Buttigieg No. 2 that there is no distinction between different types of hearing. The functions of the Tribunal and its powers under section 51 of the Victorian Civil and Administrative Tribunal Act 1998 apply to all hearings, whether final, preliminary or interlocutory[2]. Specifically, he said:

[63] It follows that where the tribunal hears from the parties to the proceeding, following notice being given of the time and place of that hearing in accordance with section 99 of the Act, the tribunal is engaged in hearing the proceeding. This is so even if the hearing is solely for the purpose of receiving submissions from the parties and then, following receipt of those submissions, making directions. Sometimes directions will be routine and will not involve the tribunal in any more than a superficial examination of the matter before it. But, on other occasions, directions may be broad sweeping in their ambit and may involve the tribunal in a detailed consideration of the issues raised in the application for review. Moreover, even if the hearing has been listed for the purpose of making directions, it would always be possible for the tribunal to exercise other powers, of a more profound character, at such a hearing. For example, if it became apparent at a directions hearing that the application was totally misconceived the tribunal might, after hearing from the parties, exercise its powers, pursuant to section 75 of the VCAT Act, to summarily dismiss the proceeding.

I therefore agree with Mr O'Farrell that this practice day hearing constitutes a "hearing of a proceeding for review of a decision" to which section 51(5) of the Victorian Civil and Administrative Tribunal Act 1998 applies. However, having regard to the short period of notice of the hearing and the lack of specificity in the notice of the hearing indicating that the application would be struck out and the council's decision confirmed if the applicants did not appear, I proposed to adjourn the hearing for a week. This would give the applicants a reasonable opportunity to attend the hearing and to be heard. I did not consider it would be consistent with the rules of natural justice[3] to strike out the application for review and confirm the council's decision without the applicants being aware of this potential outcome and being given more than 24 hours to attend the hearing.
I do not consider that the disadvantage to the permit applicant by this delay should cause the Tribunal to abnegate its responsibility to accord natural justice.
I note that the permit application was made in late April and notice was given under section 52 of the Planning and Environment Act 1987 and to referral authorities in May. It therefore seems to me that if the timing of a decision was so critical, the applicant could have lodged an application under section 79 of the Act to review the council's failure to make a decision within the prescribed time (60 days) rather than waiting until October for the council's decision.
Upon advising the parties of my decision on this point, the permit applicant indicated that any delay whatsoever in having the fate of the permit determined meant that the music festival on 21 March 2009 could not proceed. Mr O'Farrell indicated that in these circumstances, the permit applicant would seek a hearing in 2009 in the normal way and amend the permit application to specify another date (or dates) for the music festival in 2010 and possibly beyond. I will therefore give the applicant leave to amend the permit application.
Mr O'Farrell applied for costs pursuant to section 109(3)(e) of the Victorian Civil and Administrative Tribunal Act 1998. This provision enables the Tribunal to make an order for costs if it is satisfied that it is fair to do so having regard to "any other matter the Tribunal considers relevant". In the present case, Mr O'Farrell said that the applicants had notice of the hearing and they could have engaged someone to come if they were unable to attend personally.
I do not consider it is reasonable to have expected the applicants to have responded in this way, given the short notice and lack of specificity in the notice. I do not consider this is a case where I should depart from the normal rule that each party bears their own costs.

[3] Pursuant to section 98(1)(a) of the VCAT Act 1998 the Tribunal is bound by the rules of natural justice.

Hancock v Bass Coast SC [2009] VCAT 225 (16 February 2009)

Hancock v Bass Coast SC [2009] VCAT 225

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Hancock v Bass Coast SC [2009] VCAT 225 (16 February 2009)